TMI Blog1996 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and saying to the victim that he would not let him remain alive. On seeing the first informant and his helpers having come, the assailant ran away from the spot. The first informant removed his injured brother to the Hospital and kept attending to him during night. Next morning on 7.3.1994, the injured expired. Thereafter at about 10 a.m. the first informant reported the matter to the police naming Avadh Kishore alias Pagalwa as the sole accused of the crime. 4. It appears that during investigation two witnesses namely Sudama Singh and Srikant Misra claimed to have seen and heard before hand the present appellant Raj Kishore Prasad (statedly) about 18 years of age), the brother of Avadh Kishore alias Pagalwa, to have exhorted the accused to kill the deceased, where after the actual assailant is said to have assault led the deceased. 5. The investigation was conducted by the local police officers, which was supervised by the Sub Division Officer, Buxor and Superintendent of Police, Buxor. During the course of supervision, it transpired that there was not sufficient evidence or reasonable ground for suspicion that the appellant was involved in the crime and he was thus found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itment of the case to the Court of Session. 319. POWER TO PROCEED AGAINST OTHER PERSONS APPEARING TO BE GUILTY OF OFFENCE - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-section (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure is radically different from the commitment proceedings at present provided in chapter 18. (ii) Clause 214 (Section 209) - Preliminary inquiries by Magistrates in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for by the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session. However, to perform certain preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor, etc. provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session the inquiry into the complaint by the Magistrate under the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook a view which prima facie does not seem to be in accord with our views afore-expressed. It was held as follows : The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire under Section 207 has been complied with and then proceeds to commit the case to the Court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. We find it difficult to agree with the High Court that the functions discharged by the Magistrate under Section 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code. From the text of the judgment it is clear that the statement of Objects and Reasons reflecting legislative policy as to the quality of 'inquiry' was not laid before this Court as well as the report of the 41st Law Commission recommending abolishing of inquiry before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Session (though it ostensibly was under Section 319 Cr.P.C. terming material of investigation before it as 'evidence') summoning the un-named accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 Cr.P.C., on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner suggested later. 16. Thus we come to hold that the power under Section 209 Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial, alongwith the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant alongwith the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr.P.C. when handling a matter under Section 209 Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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